Jharkhand High Court
Narayan Pandit vs The Union Of India Ministry Of Railway ... on 1 August, 2017
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 6360 of 2016 (DB)
Narayan Pandit ..... Petitioner
vs.
1. The Union of India, Ministry of Railway,Rail Bhawan,
Govt. of India, New Delhi.
2. The Chairman, Railway Board, Rail Bhawan, New Delhi
3. The Chief Mining Adviser, Railway Board,
Eastern Central Railway, Dhanbad
4. The Senior Divisional Finance Manager,
Eastern Central Railway, D.R.M Office, Dhanbad
5. The Senior Divisional Personnel Officer,
Eastern Central Railway, D.R.M Office, Dhanbad
6. The Assistant Commercial MangercumDisciplinary
Authority, Eastern Central Railway, D.R.M office, Dhanbad
7. The Divisional Commercial MangercumAppellate
Authority, Eastern Central Railway, Dhanbad
8. The Senior Divisional Commercial Managercum
Revisionary Authority, Eastern Central Railway, Dhanbad
...... Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE B.B.MANGALMURTI
For the Petitioner : Mr. Rajesh Kumar, Adv.
For the Respondents : M/s. Mahesh Tewari
& Abhishek Kumar Dubey, Advs.
09/1.8.2017 Heard learned counsel for the parties.
Petitioner has suffered punishment of reduction to initial stage of pay in the present time scale of pay for a period of 3 years with cumulative effect by the order dated 11th March, 2014 passed by the Disciplinary Authority. The Appellate Authority by order dated 2nd July, 2014 confirmed the punishment, which has also been upheld in revision by order dated 18th December, 2014.
The applicant/petitioner herein being aggrieved challenged it in O.A/051/00065/15 before learned Central Administrative Tribunal, Circuit Bench at Ranchi. Learned Tribunal has by the impugned order dated 15th July, 2016 dismissed the original application holding that disciplinary proceeding has been properly held after following due 2. principles of natural justice. The charges relating to demanding and accepting excess money and recovery of excess money are proved on the basis of documentary evidence and witnesses' statements. That is how the applicant has approached this Court in the present writ application.
Petitioner was posted as Booking Clerk on Counter/Window No. 2 at Parasnath Booking Office on 17th October, 2012 when the departmental check was conducted by Vigilance Team deploying 'decoy passenger, Sri Krishna Paswan/Gang Man/PNBE and Sri Manohar Ram/Gang Man/PNBE as an independent witness.
During the course of the vigilance check the decoy passenger P.W. 6 was given 7 G C Notes of different denominations of value of Rs. 1685/ and instructed to purchase five tickets of II Mail Express with Superfast for Ludhiana station from Parasnath station. On demand of five Superfast tickets by the decoy passenger P. W. 6. the charged officer/applicant demanded and accepted Rs. 1175/ in stead of 1125/ though the value of each tickets were Rs. 225/ i.e., Rs. 50 extra for five tickets. When the transaction was completed, vigilance team appeared at the counter then the charged officer threw Rs. 50/ note out of his cash on the counter window saying that Rs. 50/ note was extra. The vigilance team thereafter opened the office after some resistance and the applicant was asked to stop/close cash. On verification, the cash was found to be Rs. 10,181/ i.e, Rs. 50 extra deposited by P.W. 6 decoy passenger. A disciplinary proceeding was held with the following charges alleged against him.
"Article1 He demanded and accepted excess amount Rs. 50/ for five tickets II M/E (with super fast) of Ludhiana (LDH) ex PNME i.e.,; he realized Rs. 1175/ in place of Rs. 1125/ (actual fare). Therefore, Sri Pandit earned Rs. 50/ illegally from the decoy passenger for his personal gain.
Article2 He was found having Rs. 50/ excess with him in the Government cash. He produced Rs. 10181/ against the ITC cash Rs. 10131/. The excess in the Government Cash indicates, he earned illegally for self interest.3.
Article3 He refused to open the door of UTS/Booking office even after the vigilance team discloses their identity. This shows noncooperation activity with the vigilance team.
By the aforesaid of acts of omission and commission, Sri Narayan Pandit/ACC/PNME failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Railway Servant, contravening rules 3(1) (i), (ii) & (iii) of Railway Service (Conduct) Rules, 1966."
Imputation of misconduct was also enclosed to the charge sheet dated 9th January, 2013.
The prosecution examined seven witnesses; four being the members of the vigilance squad; P.W. 5 being the Station Manager; P.W. 6 being the decoy passenger and P.W. 7 being the independent witness and delinquent examined one witness in his defence D.W.1. The first two charges were found to be established. However, the third charge was held to be not proved as per the inquiry report dated 20th June, 2013. Petitioner was asked to furnish a reply to the second show cause notice dated 17th July, 2013 within a period of 15 days. Copy of the inquiry report was also enclosed thereto (Annexure1 to the writ petition). Petitioner submitted his reply (Annexure2) explaining his defence. He sought to rely upon the statements made during cross examination by the decoy passenger, P.W. 6 in order to defend himself. The disciplinary authority did not find the explanation satisfactory and held the petitioner guilty of serious misconduct in demanding and accepting excess amount of Rs. 50 for five tickets II M/E (with super fast) of Ludhiana (LDH) ex PNME realized by him i.e., Rs. 1175/ in place of actual fair of Rs. 1125/. He was found to have made a personal gain of Rs. 50/ in an illegal manner. Accordingly, a penalty of reduction to the initial stage of pay in his present time scale of pay Rs. 520020200/ Grade Pay Rs. 2,000/ for a period of 3 years, which will have the effect of postponing in future increment of pay was imposed. The petitioner was also informed of the provisions of appeal to be made within a period of 45 days to DCM/DHN through proper channel. The order of disciplinary authority is dated 11th March 2014. (Annexure3). Petitioner preferred his appeal Vide annexure4. The 4. Appellate Authority cum Divisional Commercial Manager, East Central Railway, Dhanbad did not find any error in the findings of Inquiry Officer and upheld the punishment as being commensurate with the gravity of offence. The appeal was rejected by the order dated 2 nd July, 2014 (Annexure5). The Revisional Authority has also upheld the findings and the penalty imposed considering the materials evidence adduced during cross examination. Accordingly, the revision application of the petitioner was also rejected by the impugned order dated 18th December, 2014 (Annexure7).
The petitioner being aggrieved by dismissal of original application has assailed the findings in the inquiry proceeding.
Strong reliance is placed upon the statements made by decoy passenger, P.W. 6, in his crossexamination. Learned counsel for the petitioner submits that on being crossexamined P.W. 6 has categorically stated that after issue of five tickets, the charged officer refunded Rs. 50 for the first time. He again went to the booking counter after getting Rs. 1175/ for purchasing five tickets of Ludhiana which was handed over to the booking clerk but no money was refunded by him. According to P.W 6, he was instructed to go to booking office by the team. He further stated that the charged officer did not demand any money and he on his own gave Rs. 1175/ for five tickets, but no money was refunded. Learned counsel for the petitioner submits that the statement made by P.W. 6 destroys the very substratum of the allegation made against the petitioner of having appropriated Rs. 50/ for illegal means. The findings recorded in the inquiry therefore suffers from perversity and can be interfered at this stage even after concurrent view of the Appellate and Revisional Authorities. Reliance has been placed upon a judgment rendered by Hon'ble Supreme Court in the case of Kuldeep Singh Vs. Commissioner of Police and others reported in (1999) 2 SCC 10.
Learned counsel for the RespondentRailways submits that the entire materials adduced during the inquiry proceeding which include the Joint Check memorandum (AnnexureA) signed by Vigilance Team 5. as well as the applicant at the time of vigilance check and the statement of all the witnesses taken together do establish the articles of charge nos. 1 and 2 containing serious misconduct on the part of the applicant charged employee i.e., petitioner. The statement of P.W. 6 inchief and read with consistent statements of other P.Ws. and materials on record do not dent the case of the prosecution so as to question the findings of Inquiry Officer. The learned Tribunal has given anxious consideration to the entire materials adduced during the inquiry proceeding and did not find that the discrepancy in the cross examination of P.W. 6 is fit to negate the entire consistent documentary and oral evidence of the witnesses. Accordingly, the impugned punishment was upheld. Therefore, the writ petition is without merit and no leniency should be shown in cases of such serious misconduct causing acts and omission for illegal gains in official discharge of duties.
We have considered the submission of the parties and gone through the relevant materials on record including the impugned order. There are consistent finding on facts relating to guilt of petitioner at the hierarchy of the disciplinary authority, the Appellate Authority as well as Revisonal Authority through well reasoned speaking order. The discrepancy in the statement of P.W. 6 during his crossexamination was also raised before learned Tribunal by the applicant/petitioner. We have examined the materials adduced during the inquiry proceeding as brought on record through the counter affidavit of the respondents.
Perusal of the Joint Check Memorandum itself shows that the story of purchasing tickets for second time is not made out. The purchase of tickets by decoy passenger were special cancelled by the vigilance team and were taken in the custody by the vigilance team. The vigilance team also found Rs. 50/ in the cash beyond amount of Rs. 10,131/ which bore equivalence to the tickets sold out from the said counter on that date. The statement of independent witness P.W. 7 apart from the statement of other witnesses, who were part of the vigilance team are consistent. The statement of P.W. 7 namely, Shri Manohar Ram in chief as well as incross clearly goes to show that 6. decoy passenger Sri Paswan had gone to booking office for purchase of tickets on the advise of the vigilance team only once. The purchase of tickets was also made in the presence of the independent witnesses. He also has stated in response to the question no. 5 that the delinquent employee demanded Rs. 235/ for one ticket of Ludhiana and Rs. 1175/ for five tickets was given by P.W., 6, Shri Krishna Paswan. Shri Paswan was instructed by vigilance team to purchase five ticket. He has also stated in answer to question no. 7 that Shri Paswan was standing near the booking window after getting five tickets for about three minutes when the vigilance team disclosed the identity to the charged officer for opening the door but the same was not opened and was opened only after arrival of the Station Manager. The evidence of other members of vigilance team is also consistent on this point.
Standard of proof in a departmental proceeding is on the basis of preponderance of probability and not on the principles of proof beyond reasonable doubt as in the case of criminal prospection. When the entire material adduced during the inquiry proceeding has consistently established the guilt of the petitioner, on the basis of preponderance of probabilities the findings recorded in the inquiry cannot be said to be perverse in such circumstances. We have also examined the contention of the petitioner so far as discrepancy in the statement of P.W. 6 is concerned, we are not satisfied that the said discrepancy is sufficient to discredit the entire materials adduced during the inquiry to arrive at a finding of guilt on such a serous charge against the petitioner. If the charges have been proved, the punishment of reduction to the initial stage of pay in the present time scale of pay for a period of 3 years with cumulative effect cannot be said to be disproportionate to the established misconduct.
Having held as above, we are of the view that the proposition of law as laid down by Hon'ble Supreme Court in the case of Kuldeep Singh Vs. Commissioner of Police and others reported in (1999) 2 SCC 10 relied upon by the petitioner does not come to his aid in the present case. We are satisfied that the impugned order does not suffer 7. from any legal or factual infirmity which deserves interference in the writ jurisdiction of this Court. Accordingly, the writ petition is dismissed.
(Aparesh Kumar Singh,J) (B.B.Mangalmurti,J) jk